I have practiced in Virginia's appellate courts for over 40 years, and practiced family law almost exclusively since 1983. Since 1991 I have analyzed every significant Virginia family law appeal case for the Virginia State Bar's "Family Law News" quarterly. This blog contains both past and current case notes. I try to comment on the ongoing development of the law, and help other lawyers, journalists and the public understand individual cases. Individual case notes aimed to be accurate when written but are not updated as the law evolves. - Richard Crouch

October 25, 2011

Wife with separation agreement, no support still a dependent for worker's comp, death benefits

The fact that a wife waived alimony and child support in a written separation agreement does not control whether the separated (or “separated”) wife will get the death benefits from husband’s workmen’s compensation provisions if he dies in a work-related accident, the Court of Appeals held in Sifford v. Sifford, ___ Va. App. ___, ___ S.E.2d ___, 26 VLW 555 (10/11/11). What matters, the Court of Appeals held as it overturned a denial by the Workmen’s Compensation Commission, is whether or not this wife is “an actual dependent” of the deceased husband.Code §65.2-515(A)(1) in fact conclusively presumes that wife is a dependent if she has not voluntarily deserted or abandoned him, or if she lives with him, and at that time is actually dependent on him.And as for actual dependency, the Court explains, all she needs to establish is a partial dependency.The remaining requirements are that she prove husband contributed to her support with “some degree of regularity,” and that she relied upon him for reasonable necessities.The Commission had already found that the husband paid all household expenses, that the wife paid for groceries out of the joint checking account, and that she paid no rent in the marital home.Also, this is a case in which after the formal separation all the spouses did was to move to separate bedrooms, with the husband going on paying health insurance on the wife and the child and still paying all other expenses of the household. Nor does it make any difference whether the Court of Appeals agrees with the Commission’s determination that that was the intent of the agreement, because the effect of the no-alimony agreement was to provide regular support for the wife too.She didn’t need alimony all that much with this actual marital support continuing.

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Wife with separation agreement, no support still a dependent for worker's comp, death benefits

The fact that a wife waived alimony and child support in a written separation agreement does not control whether the separated (or “separated”) wife will get the death benefits from husband’s workmen’s compensation provisions if he dies in a work-related accident, the Court of Appeals held in Sifford v. Sifford, ___ Va. App. ___, ___ S.E.2d ___, 26 VLW 555 (10/11/11). What matters, the Court of Appeals held as it overturned a denial by the Workmen’s Compensation Commission, is whether or not this wife is “an actual dependent” of the deceased husband.Code §65.2-515(A)(1) in fact conclusively presumes that wife is a dependent if she has not voluntarily deserted or abandoned him, or if she lives with him, and at that time is actually dependent on him.And as for actual dependency, the Court explains, all she needs to establish is a partial dependency.The remaining requirements are that she prove husband contributed to her support with “some degree of regularity,” and that she relied upon him for reasonable necessities.The Commission had already found that the husband paid all household expenses, that the wife paid for groceries out of the joint checking account, and that she paid no rent in the marital home.Also, this is a case in which after the formal separation all the spouses did was to move to separate bedrooms, with the husband going on paying health insurance on the wife and the child and still paying all other expenses of the household. Nor does it make any difference whether the Court of Appeals agrees with the Commission’s determination that that was the intent of the agreement, because the effect of the no-alimony agreement was to provide regular support for the wife too.She didn’t need alimony all that much with this actual marital support continuing.